Obergefell v. Hodges576 U.S..pdf

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1、Obergefell v.Hodges576 U.S.SyllabusOpinion(Anthony M.Kennedy)Dissent(Antonin Scalia)Dissent(John G.Roberts,Jr.)Dissent(Clarence Thomas)Dissent(Samuel A.Alito,Jr.)SUPREME COURT OF THE UNITED STATES_Nos.14556,14-562,14-571 and 14574_JAMES OBERGEFELL,et al.,PETITIONERS14556v.RICHARD HODGES,DIRECTOR,OHI

2、O DEPARTMENT OFHEALTH,et al.;VALERIA TANCO,et al.,PETITIONERS14562v.BILL HASLAM,GOVERNOR OF TENNESSEE,et al.;APRIL DeBOER,et al.,PETITIONERS14571v.RICK SNYDER,GOVERNOR OF MICHIGAN,et al.;ANDGREGORY BOURKE,et al.,PETITIONERS14574v.STEVE BESHEAR,GOVERNOR OF KENTUCKYon writs of certiorari to the united

3、 states court of appeals forthe sixth circuitJune 26,2015Justice Scalia,with whom Justice Thomas joins,dissenting.I join The Chief Justices opinion in full.I write separately tocall attention to this Courts threat to American democracy.The substance of todays decree is not of immense personalimporta

4、nce to me.The law can recognize as marriagewhatever sexual attachments and living arrangements itwishes,and can accord them favorable civil consequences,from tax treatment to rights of inheritance.Those civilconsequencesand the public approval that conferring thename of marriage evidencescan perhaps

5、 have adversesocial effects,but no more adverse than the effects of manyother controversial laws.So it is not of special importance tome what the law says about marriage.It is of overwhelmingimportance,however,who it is that rules me.Todays decreesays that my Ruler,and the Ruler of 320 million Ameri

6、canscoast-to-coast,is a majority of the nine lawyers on theSupreme Court.The opinion in these cases is the furthestextension in factand the furthest extension one can evenimagineof the Courts claimed power to create“liberties”that the Constitution and its Amendments neglect tomention.This practice o

7、f constitutional revision by anunelected committee of nine,always accompanied(as it istoday)by extravagant praise of liberty,robs the People ofthe most important liberty they asserted in the Declarationof Independence and won in the Revolution of 1776:thefreedom to govern themselves.IUntil the court

8、s put a stop to it,public debate over same-sex marriage displayed American democracy at its best.Individuals on both sides of the issue passionately,butrespectfully,attempted to persuade their fellow citizens toaccept their views.Americans considered the argumentsand put the question to a vote.The e

9、lectorates of 11 States,either directly or through their representatives,chose toexpand the traditional definition of marriage.Many moredecided not to.1 Win or lose,advocates for both sidescontinued pressing their cases,secure in the knowledge thatan electoral loss can be negated by a later electora

10、l win.That is exactly how our system of government is supposedto work.2The Constitution places some constraints on self-ruleconstraints adopted by the People themselves when theyratified the Constitution and its Amendments.Forbidden arelaws“impairing the Obligation of Contracts,”3 denying“Full Faith

11、 and Credit”to the“public Acts”of other States,4prohibiting the free exercise of religion,5 abridging thefreedom of speech,6 infringing the right to keep and beararms,7 authorizing unreasonable searches and seizures,8and so forth.Aside from these limitations,those powers“reserved to the States respe

12、ctively,or to the people”9 canbe exercised as the States or the People desire.These casesask us to decide whether theFourteenth Amendment contains a limitation that requiresthe States to license and recognize marriages between twopeople of the same sex.Does it remove that issue from thepolitical pro

13、cess?Of course not.It would be surprising to find a prescriptionregarding marriage in the Federal Constitution since,as theauthor of todays opinion reminded us only two years ago(in an opinion joined by the same Justices who join himtoday):“Regulation of domestic relations is an area that has longbe

14、en regarded as a virtually exclusive province of theStates.”10“The Federal Government,through our history,hasdeferred to state-law policy decisions with respect todomestic relations.”11But we need not speculate.When theFourteenth Amendment was ratified in 1868,every Statelimited marriage to one man

15、and one woman,and no onedoubted the constitutionality of doing so.That resolvesthese cases.When it comes to determining the meaning ofa vague constitutional provisionsuch as“due process oflaw”or“equal protection of the laws”it is unquestionablethat the People who ratified that provision did notunder

16、stand it to prohibit a practice that remained bothuniversal and uncontroversial in the years afterratification.12 We have no basis for striking down apractice that is not expressly prohibited by theFourteenth Amendments text,and that bears theendorsement of a long tradition of open,widespread,andunc

17、hallenged use dating back to the Amendmentsratification.Since there is no doubt whatever that the Peoplenever decided to prohibit the limitation of marriage toopposite-sex couples,the public debate over same-sexmarriage must be allowed to continue.But the Court ends this debate,in an opinion lacking

18、 even athin veneer of law.Buried beneath the mummeries andstraining-to-be-memorable passages of the opinion is acandid and startling assertion:No matter what it was thePeople ratified,theFourteenth Amendment protects those rights that theJudiciary,in its“reasoned judgment,”thinks theFourteenth Amend

19、ment ought to protect.13 That is sobecause“the generations that wrote and ratified the Bill ofRights and theFourteenth Amendment did not presume to know theextent of freedom in all of its dimensions.”14 Onewould think that sentence would continue:“.andtherefore they provided for a means by which the

20、 Peoplecould amend the Constitution,”or perhaps“.andtherefore they left the creation of additional liberties,suchas the freedom to marry someone of the same sex,to thePeople,through the never-ending process of legislation.”But no.What logically follows,in the majoritys judge-empowering estimation,is

21、:“and so they entrusted to futuregenerations a charter protecting the right of all persons toenjoy liberty as we learn its meaning.”15 The“we,”needless to say,is the nine of us.“History and traditionguide and discipline our inquiry but do not set its outerboundaries.”16 Thus,rather than focusing on

22、the Peoplesunderstanding of“liberty”at the time of ratification oreven todaythe majority focuses on four“principles andtraditions”that,in the majoritys view,prohibit States fromdefining marriage as an institution consisting of one manand one woman.17This is a naked judicial claim to legislativeindee

23、d,super-legislativepower;a claim fundamentally at odds with oursystem of government.Except as limited by a constitutionalprohibition agreed to by the People,the States are free toadopt whatever laws they like,even those that offend theesteemed Justices“reasoned judgment.”A system ofgovernment that m

24、akes the People subordinate to acommittee of nine unelected lawyers does not deserve to becalled a democracy.Judges are selected precisely for their skill as lawyers;whether they reflect the policy views of a particularconstituency is not(or should not be)relevant.Notsurprisingly then,the Federal Ju

25、diciary is hardly a cross-section of America.Take,for example,this Court,whichconsists of only nine men and women,all of them successfullawyers18 who studied at Harvard or Yale Law School.Fourof the nine are natives of New York City.Eight of them grewup in east-and west-coast States.Only one hails f

26、rom thevast expanse in-between.Not a single Southwesterner oreven,to tell the truth,a genuine Westerner(California doesnot count).Not a single evangelical Christian(a group thatcomprises about one quarter of Americans19),or even aProtestant of any denomination.The strikinglyunrepresentative characte

27、r of the body voting on todayssocial upheaval would be irrelevant if they were functioningas judges,answering the legal question whether theAmerican people had ever ratified a constitutional provisionthat was understood to proscribe the traditional definitionof marriage.But of course the Justices in

28、 todays majorityare not voting on that basis;they say they are not.And toallow the policy question of same-sex marriage to beconsidered and resolved by a select,patrician,highlyunrepresentative panel of nine is to violate a principle evenmore fundamental than no taxation without representation:no so

29、cial transformation without representation.IIBut what really astounds is the hubris reflected in todaysjudicial Putsch.The five Justices who compose todaysmajority are entirely comfortable concluding that everyState violated the Constitution for all of the 135 yearsbetween theFourteenth Amendments r

30、atification and Massachusettspermitting of same-sex marriages in 2003.20 They havediscovered in theFourteenth Amendment a“fundamental right”overlookedby every person alive at the time of ratification,and almosteveryone else in the time since.They see what lesser legalmindsminds like Thomas Cooley,Jo

31、hn Marshall Harlan,Oliver Wendell Holmes,Jr.,Learned Hand,Louis Brandeis,William Howard Taft,Benjamin Cardozo,Hugo Black,FelixFrankfurter,Robert Jackson,and Henry Friendlycould not.They are certain that the People ratified theFourteenth Amendment to bestow on them the power toremove questions from t

32、he democratic process when that iscalled for by their“reasoned judgment.”These Justices knowthat limiting marriage to one man and one woman iscontrary to reason;they know that an institution as old asgovernment itself,and accepted by every nation in historyuntil 15 years ago,21 cannot possibly be su

33、pported byanything other than ignorance or bigotry.And they arewilling to say that any citizen who does not agree with that,who adheres to what was,until 15 years ago,the unanimousjudgment of all generations and all societies,stands againstthe Constitution.The opinion is couched in a style that is a

34、s pretentious as itscontent is egotistic.It is one thing for separate concurring ordissenting opinions to contain extravagances,even sillyextravagances,of thought and;it is something else for theofficial opinion of the Court to do so.22 Of course theopinions showy profundities are often profoundlyin

35、coherent.“The nature of marriage is that,through itsenduring bond,two persons together can find otherfreedoms,such as,intimacy,and spirituality.”23(Really?Who ever thought that intimacy and spirituality whateverthat means were freedoms?And if intimacy is,one wouldthink Freedom of Intimacy is abridge

36、d rather than expandedby marriage.Ask the nearest hippie.,sure enough,is afreedom,but anyone in a long-lasting marriage will attestthat that happy state constricts,rather than expands,whatone can prudently say.)Rights,we are told,can“rise.from a better informed understanding of how constitutionalimp

37、eratives define a liberty that remains urgent in our ownera.”24(Huh?How can a better informed understanding ofhow constitutional imperatives whatever that means definewhatever that means an urgent liberty never mind,givebirth to a right?)And we are told that,“in any particularcase,”either the Equal

38、Protection or Due Process Clause“may be thought to capture the essence of a right in amore accurate and comprehensive way,”than the other,“even as the two Clauses may converge in the identificationand definition of the right.”25(What say?What possible“essence”does substantive due process“capture”in

39、an“accurate and comprehensive way”?It stands for nothingwhatever,except those freedoms and entitlements that thisCourt really likes.And the Equal Protection Clause,asemployed today,identifies nothing except a difference intreatment that this Court really dislikes.Hardly a distillationof essence.If t

40、he opinion is correct that the two clauses“converge in the identification and definition of a right,”that is only because the majoritys likes and dislikes arepredictably compatible.)I could go on.The world does notexpect logic and precision in poetry or inspirational pop-philosophy;it demands them i

41、n the law.The stuff containedin todays opinion has to diminish this Courts reputation forclear thinking and sober analysis.*?*?*Hubris is sometimes defined as oerweening pride;andpride,we know,goeth before a fall.The Judiciary is the“least dangerous”of the federal branches because it has“neither For

42、ce nor Will,but merely judgment;and mustultimately depend upon the aid of the executive arm”andthe States,“even for the efficacy of its judgments.”26 Witheach decision of ours that takes from the People a questionproperly left to themwith each decision that isunabashedly based not on law,but on the“

43、reasonedjudgment”of a bare majority of this Courtwe move onestep closer to being reminded of our impotence.Notes1Brief for Respondents in No.14571,p.14.2Accord,Schuette v.BAMN,572 U.S._,_(2014)(plurality opinion)(slip op.,at 1517).3U.S.Const.,Art.I,10.4Art.IV,1.5Amdt.1.6Ibid.7Amdt.2.8Amdt.4.9Amdt.10

44、.10United States v.Windsor,570 U.S._,_(2013)(slip op.,at 16)(internal quotation marks and citation omitted).11Id.,at _(slip op.,at 17).12See Town of Greece v.Galloway,572 U.S._,_(2014)(slip op.,at 78).13Ante,at 10.14Ante,at 11.15Ibid.16Ante,at 1011.17Ante,at 1218.18The predominant attitude of tall-b

45、uilding lawyers withrespect to the questions presented in these cases issuggested by the fact that the American Bar Associationdeemed it in accord with the wishes of its members to file abrief in support of the petitioners.See Brief for American BarAssociation as Amicus Curiae in Nos.14571 and 14574

46、,pp.15.19See Pew Research Center,Americas Changing ReligiousLandscape 4(May 12,2015).20Goodridge v.Department of Public Health,440 Mass.309,798 N.E.2d 941(2003).21Windsor,570 U.S.,at _(Alito,J.,dissenting)(slip op.,at7).22If,even as the price to be paid for a fifth vote,I ever joinedan opinion for t

47、he Court that began:“The Constitutionpromises liberty to all within its reach,a liberty that includescertain specific rights that allow persons,within a lawfulrealm,to define and express their identity,”I would hide myhead in a bag.The Supreme Court of the United States hasdescended from the discipl

48、ined legal reasoning of JohnMarshall and Joseph Story to the mystical aphorisms of thefortune cookie.23Ante,at 13.24Ante,at 19.25Ibid.26The Federalist No.78,pp.522,523(J.Cooke ed.1961)(A.Hamilton).Disclaimer:Official Supreme Court case law is only found inthe print version of the United States Repor

49、ts.Justia caselaw is provided for general informational purposes only,andmay not reflect current legal developments,verdicts orsettlements.We make no warranties or guarantees aboutthe accuracy,completeness,or adequacy of the informationcontained on this site or information linked to from this site.Please check official sources.